The Neo-Kantian Dimension of Kelsen’s Legal Theory and its Limits

Abstract

It is well known that Hans Kelsen, in the name of a purity thesis, purports to rule out all fact-based legal theories as well as those based on morality. Having done so, he requires a neo-Kantian argument as a means of grounding his legal theory. The argument does not, however, prove to be sound. That leaves us with the question: what status ought to be ascribed to Kelsen’s neo-Kantianism? I argue that, despite the problems, it must be preserved as a part of the Pure Theory of Law. The alternative is distortion.